Scottish Court of Session Decisions

Subject_1 POINDING.

Arnot
v.
Greig

Date: 21 February 1712
Case No. No 45.

Poinding plough goods before the owner's bear seed was ended, when there were other poindable goods on the ground, found to be a spuilzie, though the labouring had been over 14 days before in the rest of the neighbourhood.

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Sir David Arnot of that ilk, owing some money to one Greig, he came, on the 14th of June 1710, and poinded some horses and oxen. Sir David alleging his bear-seed was not ended, he pursues him for a spuilzie, On the 98th act 1503, discharging plough goods to be poinded in labouring time, if there be other goods on the ground able to pay the debt; and which bears analogy to the Mosaical law, Deut. ch. 24. v. 6. prohibiting mill-graith to be taken in pledge, because it is his livelihood; which Grotius, in his critical notes there, accommodates to the case of agriculture; and this is also the Roman law. Alleged, The usual time of labouring was then long over, and we are not to consider what a negligent slothful man does, but the common practice in that part of the country; for why should he reap advantage by his sluggishness? Vigilantibus non dormientibus jura subveniunt. The Lords allowed a probation before answer, of the time of tilling and sowing there that year. And the testimonies coming to be advised this day, it was alleged for Sir David, That the spring 1710 being backward, the labouring fell late, and it appeared some ground about was then stirred, but not sown for want of seed. Answered, It was evident by the probation, all the country about had done with their labouring by the 1st of June; and the law must not be understood to favour negligent husbandmen, but to mean that plough-goods shall not be poinded so long as the usual season of labouring continues; and this is evident from the reason of the decision marked by Durie, 15th Nov. 1627, Gullan contra Drummuir, No 12. p. 10508.; where goods having been poinded in October, and it being alleged they were in the plough the day before, the Lords repelled the allegeance, and found no spuilzie, seeing in that mountainous high-land country, October was not the usual month for ploughing; so we are not so much to notice and consider the debtor's time of labouring, as the season generally used in that part of the country. See also 22d November 1628, Watson contra Reid, No 17. p. 10510.; and Stair, B. 1. T. 9. The Lords found the tilling of faugh, not to be sown, but to lie lee that year, did not give up the privilege; but thought, seeing Sir David had not ended his labouring that year, it was a spuilzie, though he was somewhat later than his neighbours about him; especially considering it was proven there were stacks in the yard, and corn in the barns, which if poinded might have satisfied the debt, without poinding the labouring goods.

Fol. Dic. v. 2. p. 92. Fountainhall, v. 2. p. 728. *** Forbes reports this case:

1712. June 20.—In the action of spuilzie at the instance of Sir David Arnot against David and Andrew Greigs; the Lords found the defenders poinding of the pursuer's plough goods the 15th day of June 1710, before his bearseed was ended, when there were other poindable goods upon the ground, to be a spuilzie; though the labouring had been over a matter of 14 days before in the rest of the neighbourhood. Albeit it was alleged for the defenders, That the act discharging to poind plough goods in the time of labouring, must not be understood of any particular man's unseasonable ploughing, but of the ordinary season of ploughing in such a place of the country, Stair, B. 4. T. 47. § 34; Mackenzie's Observ. on the act 98th, Parl. 6. 1503, November 15th 1627, Gullan against Drummuir, No 12. p. 10508. Seeing otherwise crafty debtors might be designedly slothful in their ploughing, and spin it out till harvest time, thereby to disappoint the lawful diligence of creditors.

In respect it was answered for the pursuer, That the defenders citations con cern only the poinding plough goods ploughing in mid-summer or October, at upseed time, for faughing or the like; and so come not home to the pursuer's case, whose labouring beasts were poinded, when he was labouring bona fide by throwing seed in the ground, in expectation of increase. And as Mackenzie says, that plough goods may be poinded after the debtor's labouring is over, suppose the neighbourhood be still labouring: Why not, a pari, should not the pursuer's goods have been privileged against poinding, till his labouring was finished, though the neighbours about had ended theirs?

Forbes, p. 600.